Deus v. Holder
| Decision Date | 23 December 2009 |
| Docket Number | No. 08-60923.,08-60923. |
| Citation | 591 F.3d 807 |
| Parties | Lonise DEUS, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Joseph Reina (argued), Reina, Bates & Kowalski Immigration Law Group, Dallas, TX, for Deus.
Anh-Thu P. Mai-Windle, Senior Lit. Counsel (argued), Thomas Ward Hussey, U.S. Dept. of Justice, Office of Immigration Lit., Washington, DC, Paul Hinker, Dallas, TX, for Holder.
Petition for Review of an Order of the Board of Immigration Appeals.
Before GARWOOD, DAVIS and DENNIS, Circuit Judges.
Petitioner, Lonise Deus, appeals from a final decision of the Board of Immigration Appeals that Petitioner is not eligible for cancellation of removal based on her failure to establish the required period of residency under INA Section 240A(a), 8 U.S.C. § 1229(a). We affirm.
Deus is a native and citizen of Haiti where she was born on August 28, 1978. She entered the United States on November 8, 1979, illegally without inspection but apparently with her mother. Her mother was granted permanent resident status on that date when Deus was one year old. On May 10, 1996, when Deus was 17, she adjusted her status to that of a lawful permanent resident. On May 5, 1999, Deus was convicted in Florida of two felony offenses: fraudulent use of a credit card and grand theft. Both are third degree felonies for which a sentence of one year or more could have been imposed. Deus was sentenced to six months deferred adjudication.
On March 25, 2005, Deus applied for naturalization with the U.S. Citizenship and Immigration services ("CIS") of the Department of Homeland Security ("DHS"). On May 1, 2006, the CIS denied the application because Deus did not establish good moral character. On June 19, 2006, removal proceedings were commenced against Deus by issuance of a Notice to Appear, alleging that she was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(I), as an alien convicted within 5 years of admission of a crime involving moral turpitude for which a sentence of one year may be imposed.
Deus attempted to seek cancellation of removal for lawful permanent residents under 8 U.S.C. § 1229b(a), alleging that she could establish the required 7 years of continuous residence after admission in any status by imputing her mother's residence to her. The statute she relies on provides:
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b.
The Immigration Judge ("IJ") rejected this argument and the rationale of the Ninth Circuit case, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), on which Deus relied, finding that such imputation was not allowed by the language of the statute. Accordingly, the IJ denied Deus' application for cancellation of removal. Deus then appealed to the Board of Immigration Appeals ("BIA"), which denied her appeal. The BIA explained that Deus' position was foreclosed by its precedent, and held that a parent's residence in the United States could not be imputed to an unemancipated minor to establish eligibility for cancellation of removal under that statute. Deus appeals.
This court reviews legal issues like the interpretation of statutes de novo. Applying Chevron, U.S.A., Inc. v. NRDC., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we subject the BIA's construction of the law it administers to a deferential review. de Fuentes v. Gonzales, 462 F.3d 498, 502 (5th Cir.2006).1
This review involves a two-step inquiry. First, we ask whether Congress has directly spoken to the precise question at issue. If Congress' intent is clear, the agency and the courts are bound to give effect to it. If the statute is silent or ambiguous with respect to the specific issue, we ask the second question, whether "the agency's answer is based on a permissible construction of the statute."
Id. (internal citations omitted). When determining whether "the agency's answer is based on a permissible construction of the statute", the Court "need not conclude that the agency construction was the only one it permissibly could have adopted, ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778.
As indicated above, Deus argues that the BIA erred in concluding that she was not eligible for cancellation of removal under § 1229b(a). Section 1229b(a) has three requirements for a permanent resident to be eligible for cancellation of removal: (1) lawful admission for permanent residence for not less than 5 years, (2) continuous residence in the United States for 7 years after admission in any status, and (3) no conviction of any aggravated felony. The immigration judge found that there is no question that Deus has been lawfully admitted as a permanent resident for not less than 5 years and that she has not been convicted of an aggravated felony.2 The only issue in this case is whether Deus can demonstrate that she resided in the United States for a continuous seven year period after being admitted in any status. This requirement is at issue because, under 8 U.S.C. § 1229b(d)(1), a petitioner's period of continuous residence as required under § 1229b(a)(2) is deemed to end when, within five years after admission, the alien commits an offense involving moral turpitude for which a sentence of one year may be imposed. 8 U.S.C. § 1227(a)(2)(A)(i)(I). Petitioner raises no issue related to whether her convictions fall within this category.
The Immigration Judge found and the BIA agreed that because Deus entered the U.S. illegally, she was not "admitted in any status" until she adjusted her status to that of a lawful permanent resident on May 10, 1996. Her period of continuous residence was terminated when she committed a crime of moral turpitude on July 15, 1998, resulting in a period of residence far shorter than the required seven years.
Deus argues that she can meet the period of residency if her mother's period of lawful residence is imputed to her. The Ninth Circuit accepted this argument in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005). Cuevas-Gaspar, like Deus, entered the United States with his parents when he was one year old. His mother later attained permanent resident status in 1990, when Cuevas was seven years old. Cuevas attained permanent resident status in 1997. In 2002, he pled guilty to being an accomplice in a residential burglary, which the Ninth Circuit held was a crime of moral turpitude. As in this case, the BIA rejected the argument that the petitioner satisfied the seven-year continuous residence requirement for cancellation of removal based on his presence as a minor child living with his lawfully-admitted parents. The Ninth Circuit recognized that Cuevas did not have lawful status prior to 1997. However, it held that he was eligible for cancellation of removal based on the imputation of his mother's period of residence while he was a minor from, 1990 until 2002.
The Ninth Circuit declined to give Chevron deference to the BIA's position. The court started with its decision in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir. 1994), which held that "because a child's domicile follows that of his or her parents, the parents' domicile in the United States is imputed to the parents' unemancipated minor child for purposes of the seven years `lawful unrelinquished domicile' required for discretionary waiver under the now-repealed INA § 212(c)." Id. at 1021. In Lepe-Guitron the Ninth Circuit observed that "immigration statutes and regulations are replete with provisions `giving a high priority to the relation between permanent resident parents and their children,'" Id. at 1024.
Section 212(c), which is the statute interpreted in Lepe-Guitron, is the predecessor to the statute at issue in this case, § 1229b(a). Section 212(c) required a period of "lawful unrelinquished domicile" in order to qualify for relief from removal, whereas cancellation of removal under § 1229b(a) requires a period of residence "after having been admitted in any status." Id. (underlining added). The term "admitted" is a defined term in the INA, defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Id. at 1022; 8 U.S.C. § 1101(a)(13). The Ninth Circuit rejected the BIA's argument that the requirement of admission into and residence in the United States, unlike domicile, does not depend on intent or capacity making imputation inapplicable to the new statute. Neither the statute nor the legislative history reveals why Congress changed the residency requirement from the "lawful unrelinquished domicile of seven consecutive years" under § 212(c) to the requirements now in § 1229b(a) (). Id. The Ninth Circuit concluded that "the change in residency requirement was intended to clear up a longstanding disagreement between the various courts of appeals and the BIA regarding the type of status necessary to qualify for relief under former 212(c)." Id. A later decision by the Ninth Circuit describes its decision in Cuevas-Gaspar as imputing the parent's admitted status to the minor child. Angel Wilfredo Ramos Barrios v. Eric H. Holder, 2009 WL 1813469, 2009 U.S.App. LEXIS 14147 (9th Cir. June 26, 2009).
...
To continue reading
Request your trial
- No. 09-1520 v. Attorney Gen. Of The United States
- Villarreal v. Horn
- Tula-Rubio v. Lynch
-
Esparza v. Garland
...a distinction between "admission" and "adjustment of status," at least for the purposes of §§ 1182(h) and 1182(a)(7), respectively.In Deus v. Holder , however, this court perceived no such distinction. That decision concluded that an alien was "admitted" to the United States at the time she......